Agent's Resignation and Appointment Agreement - Deutsche Bank AG, US Bank NA, Fleet National Bank, KeyBank NA, Bank of Nova Scotia, Sumitomo Bank Ltd., Micron Electronics Inc. and Credit Suisse First Boston
AGENT'S RESIGNATION AND APPOINTMENT
AGREEMENT
This Agent's Resignation and Appointment Agreement
("Agreement") is made this 28th day of August, 1998, by and
among Deutsche Bank AG, New York Branch, as administrative agent
("Deutsche Bank"), Deutsche Bank AG, New York Branch and U.S.
Bank National Association, as co-agents, Deutsche Bank AG, New
York and/or Cayman Islands Branch, U.S. Bank National
Association, Fleet National Bank, KeyBank National Association,
The Bank of Nova Scotia and The Sumitomo Bank, Limited., as
Lenders (the "Lenders"), Micron Electronics, Inc., a Minnesota
corporation (the "Borrower"), and Credit Suisse First Boston
("CSFB").
Recitals
A. The parties hereto, other than CSFB, entered into a
Credit Agreement dated June 10, 1998 (the "Credit Agreement"),
under which Deutsche Bank was appointed administrative agent for
Lenders.
B. Borrower has requested, and Deutsche Bank has agreed,
that Deutsche Bank resign its appointment as administrative agent
for Lenders.
C. Borrower and Lenders desire to appoint CSFB as the
administrative agent for Lenders, in replacement of Deutsche
Bank.
D. CSFB is willing to accept the appointment as
administrative agent for Lenders.
Agreement
1. Definitions. Capitalized terms used herein and not
otherwise defined shall have the meanings given in the Credit
Agreement.
2. Resignation. Deutsche Bank hereby resigns, effective
upon the Effective Date (defined in Section 4 below), as
administrative agent and as co-agent for Lenders under the Credit
Agreement. This Agreement shall constitute written notice of
resignation for purposes of Section 9.6 of the Credit Agreement.
3. Appointment and Consent. In accordance with Section
9.6 of the Credit Agreement, the Lenders hereby appoint CSFB as
administrative agent and as co-agent effective upon the Effective
Date and authorize CSFB to take all such action and exercise all
such power as agent on behalf of the Lenders as is delegated to
the Agent by the terms of the Credit Agreement. CSFB hereby
consents to and accepts such appointment as administrative agent
and as co-agent and shall have all the duties and
responsibilities of the Agent under the Credit Agreement in
accordance with the terms thereof.
4. Effectiveness. This Agreement shall become effective
upon the execution and delivery of a copy of this Agreement,
whether the same or different copies, by Deutsche Bank, each of
the Co-Agents and Majority Lenders, the Borrower and CSFB (the
"Effective Date"). This Agreement may be executed in
counterparts, each of which when so executed shall be deemed an
original, but all such counterparts together shall constitute but
one and the same instrument.
5. Miscellaneous.
(a) This Agreement is made and executed under and
shall in all respects be governed and enforced by and construed
in accordance with the substantive laws (and not the choice of
law provisions) of the State of New York
(b) Pursuant to Section 11.5 of the Credit Agreement,
the address designated for notices with regard to CSFB shall be
as set forth below its signature hereto.
In Witness Whereof, the parties hereto have caused this
Agreement to be executed as of the date first written above.
Agent: Deutsche Bank AG, New York Branch
By /s/Andre Heitbaum
------------------------------
Its Asst. Vice President
------------------------------
By /s/Belinda J. Wheeler
------------------------------
Its Vice President
------------------------------
Co-Agents: Deutsche Bank AG, New York Branch
By /s/Andre Heitbaum
------------------------------
Its Asst. Vice President
------------------------------
By /s/Belinda Wheeler
------------------------------
Its Vice President
------------------------------
U.S. Bank National Association
By /s/Ross Beaton
------------------------------
Its Vice President
------------------------------
Lenders: Deutsche Bank AG, New York Branch
and/or Cayman Islands Branches
By /s/Andre Heitbaum & Belinda Wheeler
------------------------------
Its Asst. Vice President & Vice President
------------------------------
U.S. Bank National Association
By /s/Ross Beaton
------------------------------
Its Vice President
------------------------------
Fleet National Bank
By /s/Andrew Wigren
------------------------------
Its Asst. Vice President
------------------------------
Keybank National Association
By /s/Richard J. Ameny, Jr.
------------------------------
Its Asst. Vice President
------------------------------
The Bank Of Nova Scotia
By /s/Maarten Van Otterloo
------------------------------
Its Senior Relationship Manager
------------------------------
The Sumitomo Bank, Limited
By /s/John C. Kissinger
------------------------------
Its General Manager
------------------------------
CSFB: Credit Suisse First Boston
By /s/Chris T. Horgan
------------------------------
Its Vice President
------------------------------
By /s/Julia P. Kingsbury
------------------------------
Its Vice President
------------------------------
Address: 11 Madison Avenue
New York, NY 10010
Attn: Christopher T. Horgan
Telephone: (212) 325-9157
Telefax: (212) 325-8309
Borrower: Micron Electronics, Inc.
By /s/T.Erik Oaas
------------------------------
Its Executive Vice President & CFO
------------------------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.55
<SEQUENCE>3
<TEXT>
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Agreement") is
made as of this 1st day of September, 1998, by and between
Deutsche Bank AG, New York and/or Cayman Islands Branch (the
"Assignor") and Credit Suisse First Boston (the "Assignee").
Recitals
A. Assignor, U.S. Bank National Association, Fleet
National Bank, KeyBank National Association, The Bank of Nova
Scotia and The Sumitomo Bank, Ltd. (collectively, the
"Lenders"), Micron Electronics, Inc., a Minnesota corporation
(the "Borrower"), Credit Suisse First Boston and U.S. Bank
National Association, as co-agents, and Credit Suisse First
Boston as administrative agent for Lenders (the "Agent") are
parties to that certain Credit Agreement dated as of June 10,
1998 (as the same may be amended, modified or extended from time
to time the "Credit Agreement"). Capitalized terms not otherwise
defined herein shall have the meanings given in the Credit
Agreement.
B. Pursuant to the terms of the Credit Agreement, Assignor
has a Commitment to make Loans to Borrower under the Credit
Agreement in an aggregate principal amount at any time
outstanding not to exceed Twenty-Two Million, Five Hundred
Thousand Dollars ($22,500,000).
C. Assignor proposes to assign to Assignee all of
Assignor's rights under the Credit Agreement, and Assignee
proposes to accept assignment of such rights and assume the
corresponding obligations from Assignor on such terms;
Now, Therefore, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as
follows:
Agreement
1. Definitions. Capitalized terms used herein and not
otherwise defined shall have the meanings given in the Credit
Agreement.
2. Assignment and Assumption. Assignor hereby assigns and
sells to Assignee a one hundred percent (100%) undivided interest
in all of its Loans, its Commitment, and in all of its rights
under the Credit Agreement and the other Loan Documents, and
Assignee hereby accepts such assignment from Assignor and assumes
a corresponding one hundred percent (100%) undivided interest of
the obligations of Assignor under the Credit Agreement and the
other Loan Documents, including the Commitment. The percentage
interest assigned to and assumed by Assignee from Assignor as set
forth in the preceding sentence is sometimes hereafter referred
to as Assignee's "Assigned Interest." Assignee hereby agrees,
for the benefit of Agent, to be responsible for its Assigned
Interest of each Assignor's obligations to Agent, whether now
existing or hereafter arising, including, but not limited to, the
indemnification obligations arising under Section 9.5 of the
Credit Agreement. Upon the execution and delivery hereof by
Assignor, Assignee, Agent and Borrower and the payment of the
amounts specified in Section 3 hereof if required to be paid on
the date hereof: (a) Assignee shall enjoy the rights and be
obligated to perform the obligations of a "Lender" under the
Credit Agreement and the other Loan Documents with respect to the
Assigned Interest to the same extent as if Assignee had been the
original Lender with respect thereto, (b) the Commitment of
Assignor and Assignee under the Credit Agreement shall be $-0-
and $22,500,000 respectively, (c) the Percentage Interest of
Assignor and Assignee under the Credit Agreement shall be 0% and
22.5% respectively, (d) Assignor shall no longer be a "Lender"
under the Credit Agreement, and (e) Assignor shall immediately
return to borrower the Note made in its favor by Borrower, marked
"Cancelled". The assignment provided for herein shall be without
recourse to Assignor.
3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, Assignee shall pay to Assignor
on the date hereof in immediately available funds the amount of
zero dollars ($0), such amount being the product of: (a) the
Assigned Interest and (b) principal of and accrued interest on
Assignor',s Loans outstanding as of the date hereof. It is
understood that the upfront fees paid by Borrower upon the
execution of the Credit Agreement and the facility fees accrued
to the date hereof in respect of the Assigned Interest are for
the account of Assignor and that the facility fees accruing from
and including the date hereof are for the account of Assignor and
Assignee in accordance with their respective Percentage Interests
after giving effect to the assignment and sale contemplated in
Section 2 hereof. Assignor and Assignee each hereby agree that
if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such
other party.
4. Non-Reliance on Assignor. Assignor makes no
representation or warranty and assumes no responsibility with
respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Assigned
Interest, the Loans, the Credit Agreement, any other Loan
Document, any other instrument or document furnished pursuant
thereto or in connection therewith or the transactions
contemplated herein or therein, except that Assignor represents
and warrants that it is legally authorized to enter into this
Agreement, that it has good title to the interest being assigned
by it and that the interest being assigned by it is not subject
to any liens or claims of others arising by, through or under
Assignor. Assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of Borrower. Assignor assumes no responsibility for the
performance or observance by Borrower of any of its obligations
under the Credit Agreement or any other Loan Document or any
other certificate, instrument or document furnished pursuant
thereto. Assignee confirms and agrees that it has received a
copy of the Credit Agreement, any amendments or waivers thereto
and any other documents furnished pursuant thereto, together with
copies of any financial statements requested by it, and that it
has independently and without reliance on Assignor or Agent, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and
financial condition of Borrower.
5. Eligible Assignee. Assignee hereby represents that it
is an Eligible Assignee within the meaning of clause (i) of the
definition of such term in Section 1.1 of the Credit Agreement.
6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
7. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed an original, and all of which when taken together shall
constitute one and the same Agreement.
In Witness Whereof, the parties hereto have caused this
Agreement to be executed by their respective officers or agents
thereunto duly authorized as of the date first above written.
Assignor Assignee
Deutsche Bank AG, New York Credit Suisse First Boston
and/or Cayman Islands Branch
By: /s/Andre Heitbaum By: /s/Chris t. Horgam
------------------------- ------------------------
Its: Asst. Vice President Its: Vice President
------------------------- ------------------------
By: /s/Belinda Wheeler By: /s/Julia P. Kingsbury
------------------------- ------------------------
Its: Vice President Its: Vice President
------------------------- ------------------------
<PAGE>
Borrower's Consent and Agreement
Borrower hereby consents to the terms of the foregoing Agreement.
Borrower hereby agrees, as of the date hereof, to recognize
Assignee as a "Lender" under the Credit Agreement and the other
Loan Documents.
Borrower:
Micron Electronics, Inc.
By: /s/T.Erik Oaas
-------------------------------
Its: Executive Vice President & CFO
-------------------------------
Agent's Consent and Agreement
Agent hereby consents to the terms of the foregoing Agreement.
Agent hereby agrees, as of the date hereof, to recognize Assignee
as a "Lender" under the Credit Agreement and the other Loan
Documents.
Agent:
Credit Suisse First Boston
By: /s/Chris T. Horgan
----------------------
Its: Vice President
----------------------
By: /s/Julia P. Kingsbury
----------------------
Its: Vice President
----------------------